Commentary by Co-Defendant’s Counsel on Defendant’s Refusal To Testify: A Violation of the Privilege Against Self-Incrimination?

Currently, the circuits are divided on whether comments by co-defendants’ counsel on a defendant’s silence impair that defendant’s fifth amendment rights. Furthermore, among the circuits that regard such commentary as potentially prejudicial, disagreement exists over the proper test for identifying such comments. This Note asserts that the risk of prejudicing a defendant’s fifth amendment rights is too great to allow counsel any comment on a defendant’s decision to testify or to remain silent.

Part I of this Note examines the historical evolution of the privilege against self-incrimination and the policy goals behind the privilege. The Note argues that prohibiting comments on silence by codefendant’s counsel is consistent with the fifth amendment’s historical purpose and subsequent interpretation. Part II considers the Supreme Court’s decision in Griffin v. California and later decisions concerning commentary on courtroom silence and applies analytical models derived from these decisions to the issue of co-defendant’s commentary. Finally, Part III examines the circuit courts’ attempts to define a standard for identifying comments made by co-defendant’s counsel that prejudice a defendant’s privileged silence. This Part concludes by demonstrating the insufficiency of the current tests and by advocating a new standard which prohibits all commentary on the act of testifying or on the limitations imposed on some defendants by another defendant’s silence.